On January 20, President Donald Trump’s first day in office, the Department of Justice’s Office of Legal Counsel published a legal opinion that cleared the way for Jared Kushner, Trump’s son-in-law, to serve in the Trump administration.
In authoring the opinion, deputy assistant attorney general Daniel Koffsky departed from decades of precedent. Koffsky determined that the 1967 anti-nepotism statute, which was implemented shortly after President Kennedy appointed his brother, Robert, to be attorney general, is irrelevant in the context of White House Office appointees because the White House Office is not an “executive agency.”
Koffsky justified his reasoning by citing a 1995 D.C. Circuit case, Haddon v. Walters, which found that the anti-nepotism statute is taken into consideration with appointees in executive agencies, a categorization that would exclude the White House Office. He also analyzed the connection between the anti-nepotism statute and the U.S. Code’s section 105(a) of title 3, which grants the president authority to make White House Office appointments “without regard to any other provision of law regulating the employment or compensation of persons in the Government service.” “In choosing his personal staff,” Koffsky wrote, “the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office.”
This is a break with tradition. Since 1967, the OLC has reaffirmed that a president’s relatives are prohibited from accepting positions in any part of the administration. For example, in 1977 the OLC objected to President Jimmy Carter’s son working as an unpaid assistant in the White House.
Some legal scholars such as Washington University law professor Kathleen Clark believe that Koffsky’s opinion was published to “accommodate the president.” In November, Clark told Politico that “the purpose of the [anti-nepotism] statute seems to me to be to promote confidence in federal employees by prohibiting nepotism,” so it wouldn’t logically follow “to exempt the White House from the coverage of the statute.”
But Koffsky’s career at the OLC suggests otherwise. Indeed, former attorney general Eric Holder has described Koffsky as “a living repository of OLC’s precedents and practices.” Moreover, Koffsky has held numerous positions in the OLC since 1989, and enjoyed a career that has spanned across the administrations of George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama.
In his opinion, Koffsky outlined the choices a president has if he chooses to seek governmental advice from a relative. On the one hand, he observed, Trump could seek counsel unofficially — that is, without “imposing the responsibilities that accompany formal White House positions.” On the other, he could appoint a relative and “subject him to substantial restrictions against conflicts of interest.” (Kushner has said he will divest from some of his assets and place them in a blind trust. Kushner also said he would not be taking a government salary as senior adviser.) While he acknowledged that his “conclusion . . . departs from some of [the OLC’s] prior work,” Koffsky contended that the “departure is fully justified.”